African Commission launches report providing framework for an African human rights-based response to HIV

News release: Human Rights organisations applaud African Commission’s launch of HIV report

SALC : STAFF WRITER

Abidjan, Côte d’Ivoire – On this International Human Rights Day, regional human rights organisations commend the African Commission on Human and Peoples’ Rights (ACHPR) on the adoption and launch of the summary version of the Report on the Law and Human Rights in the African Human Rights System: Key Challenges and Opportunities during ICASA 2017 in Abidjan, Côte d’Ivoire.

The Report was developed by the Commission’s Committee on the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV (HIV Committee) through a process of extensive consultation and engagement with experts and civil society over a period of two years. This report is the first of its kind. It provides a framework for an African human rights-based response to HIV. It illustrates what human rights law demands of States in the context of HIV, and describes both barriers and good practices for effective rights-based responses. As a body vested with the broad mandate for the protection and promotion of human rights in Africa, it is significant that the Commission is recognising HIV as an urgent and significant human rights concern.

In trying to push for an end to the HIV epidemic, some States in the region continue to propose and implement coercive and punitive solutions that violate human rights. While there have been great strides in new biomedical interventions in the HIV response, the Commission’s Report is a reminder that the end of HIV will not be achieved without human rights at the heart of the response.

“The Commission is a critical instrument for enforcing human rights in Africa. We commend the Commission for its leadership in ensuring that human rights are at the centre of the HIV response. The advancements in medicines for HIV and models of care cannot be of any use unless people’s human rights are respected and structural barriers to accessing HIV care and treatment are removed,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA).

“Through the Report, the Commission affirms the obligation of States to promote non-discrimination particularly, discrimination based on sexual orientation and gender identity; and to address the systemic violations of the rights of key populations and marginalised groups in particular, the right to health which exacerbates vulnerability to HIV ,” says Humphrey Ndondo, Executive Director of the African Men for Sexual Health and Rights (AMSHeR).

“We hope that the Report will guide the Commission, States, and other stakeholders, in their decision making,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre. “We call on States to engage with this important Report, and take note of both the barriers and good practices described.”

International Human Rights Day, marked on 10 December, must serve as a reminder of the importance of human rights when addressing HIV. It is a day where society should not only celebrate human rights, but keep in mind the long road ahead and the continuing human rights challenges that must be addressed if we are to end AIDS as a public health threat.

ENDS

For more info:

Lesley Odendal, Communications Lead, AIDS and Rights Alliance for Southern Africa (ARASA): communications@arasa.info, +27 72 960 8991

Annabel Raw, Southern Africa Litigation Centre (SALC): annabelr@salc.org.za, +27 10 596 8538

See www.achpr.org for more about the African Commission on Human and Peoples’ Rights (ACHPR) and the report.

Malawi: Police officers urged to stop criminalising sex-workers due to their HIV status

Malawi law enforcers urged to desist from criminalizing sex-workers over HIV/AIDS status

LILONGWE-(MaraviPost)-The Malawi Police Services’ (MPS) officers have been urged to desist from criminalizing sex-workers due to their HIV and AIDS status when they come to conflict with the law.

This reduce cases of defaulting the drug prolonged-life, ARVs when are on remand cell as they become uncooperative with the law-enforcers

The call will also enhance cordial relationship men in uniform they have with sex-worker as they harbor criminals when playing their trade.

In an exclusive interview with The Maravi Post in the sidelines of World AIDSDAY that falls on December 1st yearly, Priest Mpemba, Kanengo Police Model station HIV/AIDS Coordinator, said time was ripe for officers handle sex-workers in line with human rights principles.

Mpemba who is also DNA Forensic Investigator observed that some law-enforcers criminalize sex-workers during sweeping exercises due to their serial status.

The HIV/AIDS coordinator added that the laws of land do not criminalize sex-work but the act of being conflict with the constitution including robbery and violence among others.

On legalization of sex work in the country, the DNA Forensic Investigators said the matter was a policy issue which the county’s leadership must trade carefully regarding to how the society perceives sex workers.

With extensive sensitization the station is taking on HIV/AIDS, Mpemba expects a cordial relationship between the police and the public in ending the HIV/AIDS pandemic in the country.

On skills handling suspects living with HIV and AIDS, the coordinator said that the station expects fewer lawsuits.

“This year’s World AIDS DAY commemoration must focus as well on how sex-workers are being treated in the society. They are into that trade with various reasons but their rights must be respected as human beings. This is the reason the station using its own resources has been into intensive sensitization on the virus.

“Our officers should also treat suspects especially those living with the virus with dignity as human that they continue taking medication when are on remand. This will reduce drug defaulters and ease lawsuits the station receives,” says Mpemba.

Speaking Friday on World AIDS Day, at the Blantyre Youth Centre The Minister of Health and Population, Atupele Muluzi said that right to health is a fundamental human right, everybody has the right to the enjoyment of the highest attainable standard of physical and mental health.

This year’s commemoration was under the theme ‘Right to Health: Access to Quality HIV Prevention and Treatment Services”.

Before the function, the Minister opened Umodzi Family Centre at Queen Elizabeth Central Hospital. The centre will help facilitate HIV testing and treatment, TB screaming and offer reproductive health services.

AIDS is no longer the high-profile public health menace it once was thanks to the discovery in 2011 that antiretroviral treatment can not only suppress HIV in the bloodstream and reduce the risk of spreading the virus, but also, some experts predict, eventually end the epidemic.

Published in the Maravi Post on Dec 3, 2017

Philippines: LGBTQ rights groups and advocates appeal to government authorities and medias to "Stop HIV shaming"

‘Stop HIV shaming’: When status is not the story

Here are guidelines for government authorities and media groups in handling cases and stories involving persons living with HIV

MANILA, Philippines – When agents of the Philippine Drug Enforcement Agency (PDEA) arrested 11 men in a drug bust at a hotel in Taguig City on Monday, November 27, the agency revealed more information than necessary during its press conference the following day.

Aside from announcing the raid yielded P387,000 worth of party drugs, PDEA showed mug shots of suspects and even mentioned that one of them is positive for HIV.

Immediately, mugshots photos of the suspects and keywords like “gay men,” “orgy,” and, “HIV” appeared in headlines and social media posts referring to the raid.

Netizens and advocates from the lesbians, gays, bisexuals, transexual, and queer (LGBTQ) community slammed the PDEA and media outlets that carried the angle for baring the mugshots and the disclosure of one’s HIV status. They argued that, by doing so, PDEA and the media outlets only helped perpetuate the stigma attached to the LGBTQ community and people living with HIV.

Unfortunately, this incident took place only 3 days before the world observes the World AIDS Day on Friday, December 1.

Guidelines for authorities

Disclosing to the media that one of the suspects tested positive for HIV was unnecessary, according to Senator Risa Hontiveros and several LGBTQ rights groups and advocates, like Dakila, Red Whistle, Pedal HIV, and UP Babaylan.

Their appeal to government authorities is the same: Stop HIV shaming. (READ: [DASH of SAS] Better police handling, media coverage of drugs and HIV needed)

“While the use of prohibited drugs is illegal, their sexual orientation and HIV status are unimportant and should have been treated with utmost sensitivity and respect,” UP Babaylan said in a statement.

While PDEA has since apologized, Hontiveros said in a statement released on Wednesday, November 29, that PDEA and law enforcement agencies should train themselves on the ethics and protocols in the proper handling of persons living with the human immunodeficiency virus (PLHIV).

“I welcome PDEA’s apology, but we cannot ignore the mental and emotional damage already inflicted on the said person. Living with HIV is not a crime. Whatever legal and criminal charges he is facing, testing positive for HIV has nothing to do with them,” Hontiveros said.

Hontiveros added that government agencies like PDEA should be at the forefront when it comes to fighting the stigma attached to PLHIV.

“Our authorities should help in telling the public that the HIV-AIDS epidemic can be effectively addressed and that persons living with HIV should have their rights protected. Our authorities should not aid the further stigmatization of those living with the disease,” she added.

Media reporting

Advocates, on the other hand, chided media groups that carried the angle for their unethical and sensational reporting. According to them, media groups that unnecessarily highlighted the HIV reference violated the confidentiality clause stated in the Republic Act 8504 or the Philippines AIDS Prevention and Control Act of 1998.

Article 6 of the HIV law generally aims to promote confidentiality in handling all medical information, particularly the identity and status of PLHIV. (INFOGRAPHIC: How is HIV transmitted?)

In the Philippines, there are no clear guidelines and prohibition in media on HIV disclosure. Bills filed by Dinagat Island Representative Kaka Bag-ao and Senator Risa Hontiveros seek to address this gap by strengthening the confidentiality clause of the current HIV law.

Globally, groups observe the following ethical guidelines and principles in reporting about HIV and AIDS:

Accuracy is critical.
Misconceptions should be debunked.
Clarity means being prepared to discuss sex.
Balance means giving due weight to the story.
Journalists should hold all decision makers to account.
Journalists should ensure that the voices and images of people living with and affected by HIV and AIDS are heard and seen.
Journalists should respect the rights of people with HIV and AIDS.
Particular care should be taken in dealing with children.
Discrimination, prejudice, and stigma are very harmful.

These guidelines were echoed by the Center for Media Freedom and Responsibility (CMFR), a media watchdog.

In a phone interview with Rappler, CMFR editorial manager Lawrence Idia said journalists bear the responsibility of discerning which information to report to the public.

“On the part of the media, when you obtain information, you should also make sure that it does not cause any harm or violate privacy. In this case, the stigma should not have been reinforced,” he said in a mix of English and Filipino.

Idia said setting guidelines for the media on reporting sensitive issues like HIV and AIDS would be good starting point in helping break the stigma.

Fighting the stigma

Advocates agreed that the actions of PDEA and some media groups greatly affected the country’s fight against the stigma attached to PLHIV and against the health epidemic in general.

Last August, the Department of Health (DOH) cited the latest data from the UNAIDS Report on global HIV epidemic states, and announced that the Philippines has the “fastest growing” HIV epidemic in Asia-Pacific.

According to the report, the new HIV cases among Filipinos more than doubled from 4,300 in 2010 to 10,500 in 2016.

“Just reading the comments from the articles about the buy-bust is disheartening. This stigma against the LGBTQ+ Community and people with HIV/AIDS should not be tolerated,” Dakila communications director Cha Roque said.

In any case, this drawback did little to dampen the spirits of advocates who are at the frontlines in the goal to raise awareness about HIV and AIDS.

“We need to be constantly talking about how our society deals with the LGBTQ+ community. Dakila believes that as much as we celebrate that ‘love wins,’ we shall also remember that with love comes the right to express yourself, and not to be discriminated for it,” added Roque. – Rappler.com

Mexico: First Spanish language ‘HIV is Not A Crime’ meeting leads to new Network and impressive early results

In October 2017 the first Spanish-language ‘HIV Is Not A Crime’ meeting took place in Mexico City, supported by the HIV JUSTICE WORLDWIDE coalition.

The two-day meeting brought together people living with HIV, activists, lawyers, human rights defenders, and academics from across Mexico – alongside HIV JUSTICE WORLDWIDE partners CNET+ (Belize), Sero Project (USA), and the HIV Justice Network – to discuss the current state of HIV criminalisation nationally, regionally and globally.

As well as learning about HIV criminalisation around the world; the global movement to end HIV criminalisation; and the importance of the leadership of Networks of People Living with HIV, participants discussed reform initiatives in the three states where specific problematic laws exist (Veracruz) or were recently proposed (and Quintana Roo and San Luis Potosí).

In 2015, the Congress of Veracruz approved a reform of the Penal Code in order to add to the crime “of contagion” the term “sexually transmitted infections” (STI), among which are HIV and HPV, to “try to prevent the transmission of such infections, mainly to (vulnerable) women and girls.” The penalty includes six months to five years in prison and a fine of up to 50 days minimum wage for anyone who “maliciously” infects another person with an STI.

In San Luis Potosí, the governor, Juan Manuel Carreras López, proposed reforms to the Criminal Code, including the creation of article 182 bis, to punish “the person knowing that he is a carrier of a sexually transmitted disease. ..) endangers the health of another person through sexual intercourse “. Thanks to quick action by local activists, the proposed reforms did not pass.

In Quintana Roo, last year Congresswoman Laura Beristain proposed reforming Article 113 of the Criminal Code to punish anyone who transmits HIV with up to 25 years in prison. A few weeks ago, following a meeting with activists including those who attend the ‘HIV is not a crime meeting’, she committed to dropping the proposal.

In addition to these HIV-specific laws, the meeting heard that 30 the 32 states that make up the Mexican Republic have a public health law that sanctions exposure to sexually transmitted infections. Only the states of Aguascalientes and San Luis Potosí do not have this law.

According to data from Letra S, at least 39 people have been prosecuted under this law between 2000 and 2016 on suspicion of having transmitted a sexual infection and / or HIV. The state with the highest number of registered cases is Veracruz, with 15; Sonora follows, with nine; Tamaulipas and State of Mexico, with five; Chihuahua, with three, and Mexico City and Nuevo León with a case.

Last year, the Veracruz Multisectoral Group on HIV / AIDS and STIs and the National Commission on Human Rights challenged the Veracruz law on unconstitutionality grounds at the Supreme Court of Justice of the Nation. The challenge was supported by HIV JUSTICE WORLDWIDE in a widely reported press conference last year. However, the Supreme Court has yet to rule.

As a result of the meeting, the Mexican Network of organisations against the criminalisation of HIV was formed, bringing together 29 organizations from all over the country. During, and immediately following the meeting, the Network drafted an 11-point Declaration addressed to various governmental agencies in charge of responding to the epidemic, as well as to society in general.

Among the key points in the Declaration, they note that the Mexican State is required to assume the commitment to guarantee an integrated response to HIV (prevention, timely diagnosis and comprehensive attention) and stresses that it is not the task of the judicial authorities to develop and implement measures to prevent transmission of HIV.

The declaration also emphasises that the criminalisation of HIV exposure through “risk or danger of HIV infection” and other public health statutes that appear in the laws of individual Mexican states are generating more harm than good in terms of impact on public health, in addition to preventing the guarantee of respect for the human rights of people with HIV.

With two weeks of the meeting, Network representatives met with Congresswoman Laura Beristain, who had proposed the new unjust, overly broad HIV criminal law in Quintana Roo. She listened to their arguments, read the Declaration, and immediately gave a firm commitment to repeal Quintana Roo’s problematic provisions in Article 113.

Watch and share short video below about the meeting and the Network’s immediate advocacy win.

UK: Avon and Somerset Police apologise after being accused of spreading misinformation over the use of spithoods and HIV transmission

Avon and Somerset Police apology over spit hood statement

Avon and Somerset Police has apologised after announcing officers would wear spit hoods to prevent the transmission of diseases.

In a statement last week it said: “Each day we face being spat at, putting us at risk of HIV, hepatitis and tuberculosis”.

However several HIV and AIDS organisations have accused the force of spreading misinformation.

NHS guidelines state that HIV cannot be transmitted through saliva.

In a statement on Twitter, the force said: “We did not mean to cause any offence to people living with HIV or Hepatitis B or Hepatitis C, and we are very sorry if this has been the case.

“It was never our intention to reinforce stigma for people living with those conditions.

“Our aim has never been to focus attention on people living with health conditions, but to provide officers with means of protection from people who use spit as a weapon.”

‘Fuels misconceptions’

The British HIV Association said: “To be spat at is frightening and degrading and we really do empathise. But spitting does not, under any circumstances, transmit HIV.

“Suggesting that it might only fuels the misconceptions and stigma people with HIV face daily. Please don’t use HIV as justification for spit guards.”

Bristol-based HIV charity Brigstowe Project added: “We understand and sympathise with the need for police protection but implore Avon and Somerset Police to justify this using facts, not fiction.”

Avon and Somerset Police plans to introduce controversial spit hoods from January.

The transparent mesh fabric hoods are used to prevent those arrested from spitting or biting officers.

Published in the BBC on Nov 22, 2017

Africa: Civil society organisations deliver statement condemning HIV criminalisation at African Commission on Human and People's Rights

MEDIA RELEASE: Civil society statement on the criminalisation of HIV at the 61st Ordinary Session of the African Commission on Human and People’s Rights

6 November 2017

BANJUL, The Gambia—Civil society organisations working on HIV and human rights, delivered a statement at the 61^st Ordinary Session of the African Commission on Human and People’s Rights condemning the disturbing trend of the enactment of repressive HIV specific laws which often contain provisions that criminalise HIV, transmission, non-disclosure and exposure. These laws also often provide for compulsory HIV testing, disclosure of HIV status and involuntary partner notification.

“These provisions are overly broad and disregard the best available scientific evidence. They fail to pass the human rights test of necessity, proportionality and reasonableness; rather, they have the effect of exacerbating stigma, discrimination and prejudice against people living with HIV. These measures undermine both an effective public health response to the HIV epidemic, as well as the human rights of people living with HIV,” said Michaela Clayton, Director of the AIDS and Rights Alliance for Southern Africa (ARASA).

In sub-Saharan Africa, while there were no HIV-specific criminal laws at the start of the 21st century, 31 countries have since then enacted overly broad or vague HIV-specific criminal statutes. These laws and policies provide, inter alia, for the criminalisation of HIV transmission, exposure and non-disclosure despite the fact that in all of these countries there are existing penal provisions which can be invoked in those rare cases of intentional HIV transmission. The number of prosecutions continues to rise at an alarming rate in countries where HIV specific criminal laws have been promulgated. To date, prosecutions have been documented in 16 countries.[1]

“We are concerned that the current advancements in the HIV response in Africa are being threatened by the misguided use of criminal sanctions by States, to – as they argue – ‘control the spread of the HIV epidemic’. These laws, policies and practices violate the rights of people living with HIV and of all healthcare users to informed consent, bodily integrity, dignity, freedom from inhuman and degrading treatment, and fair trial rights, amongst others. The protection of these rights is specifically provided for in Article 4 (bodily integrity), Article 5 (dignity), Article 7 (fair trial), and Article 16 (right to health) of the African Charter,” said Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre.

Women living with HIV face surveillance and state control in terms of their reproduction, family planning, childbirth, child feeding, and child raising choices. In many contexts, HIV criminalisation laws, policies, and practices have a disproportionately punitive effect on women, as evidenced by recent cases. For example, in Malawi a woman living with HIV was prosecuted for breastfeeding. In addition, there are numerous examples of prosecutions of people living with HIV in Zimbabwe, Uganda, and Nigeria, particularly women. In our patriarchal societies, it is women who already disproportionately face the burden of the HIV epidemic due to their inability to negotiate protective sexual intercourse in relationships, and are often the first to be tested for HIV.

“We, however, would like to recognise the positive developments made by some African countries due to consistent advocacy on the part of civil society. Two countries have strongly rejected HIV criminalisation: Mauritius in 2007 and Comoros in 2014. Furthermore, Mozambique revised its HIV law in 2014 to remove HIV criminalisation, and in Kenya the High Court has ruled that section 24 of HIV Prevention and Control Act 2006, which forced people with HIV to disclose their status to any ‘sexual contacts’, was found to contravene the Kenyan constitution that guarantees the right to privacy,” said Victor Mhango, Executive Director of the Centre for Human Rights Education, Advice and Assistance (CHREAA).

As HIV and human rights organisations we call on the African Commission on Human and People’s Rights to take leadership in protecting the rights of people living with and affected by HIV, including women living with HIV by:

Encouraging and reminding member states about their obligations under the African Charter and the Maputo Protocol, including Resolutions adopted by the Commission;
Reminding states of their duties and mandates to protect and promote the rights of people living with and affected by HIV, including women and girls who are vulnerable to HIV, by prioritising the urgent needs for access to justice and the upholding of the rights to bodily integrity, autonomy, and health;
Calling on states to repeal laws that unjustly criminalise HIV transmission, exposure, and non-disclosure.

The full statement can be found here: HIV_Criminalisation_statement__African_Commission_SALC_ARASA.pdf

Signed:

AIDS and Rights Alliance for Southern Africa http://www.arasa.info

Centre for Human Rights Education, Advice and Assistance http://chreaa.org

Centre for the Development of People http://www.cedepmalawi.org

Coalition of Women Living with HIV in Malawi https://cowlhamalawi.wordpress.com

Southern Africa Litigation Centre https://southernafricalitigationcentre.org

Women Lawyers Association of Malawi https://womenlawyersmalawi.com

Zambia Network of Religious Leaders Living With or Affected by HIV and AIDS http://zanerela.weebly.com

[ENDS]

US: Trevor Hoppe, author of Punishing Disease, talks about HIV criminalisation and homophobia

Last week, the Missouri trial of Michael Johnson ended when Johnson pled guilty to HIV exposure to get 10 years in prison, rather than the maximum of 96 years he might face if his case went to trial.

For many people who are diagnosed with HIV today, it is a chronic manageable disease, and more and more health officials agree that people who are HIV-positive and undetectable don’t transmit the virus. But, in the eyes of the law in many states, an HIV-positive person’s sexuality is something to be handled by the criminal justice system.

For National Gay Men’s HIV/AIDS Awareness Day, INTO spoke with Trevor Hoppe, author of Punishing Disease: HIV and the Criminalization of Sickness, due out November 14th, about HIV criminalization laws. Hoppe enlightens us on why they’re bad, why they’re homophobic and why they should be tossed out.

One of the arguments you bring up in your book is that a lot of these HIV criminalization laws that we live with now were never really, when they were written, they were framed as fighting HIV, but they came from a place of “mortality” rather than trying to combat the spread of the virus.

Definitely. So that’s one of the points that I’ve been making in my research is that from day one, criminal justice officials and police have been lobbying for these laws on the basis that they wanted to punish people living with HIV. In particular, in the early days, police were very frustrated with prostitutes who were living with HIV who they couldn’t put behind bars for more than a couple of months because prostitution was a misdemeanor.

So they were seeking a felony penalty so they could keep these mostly women behind bars for longer periods of time. Then it transitioned from a kind of fear of sex work to a fear of gay sex and homophobia. It’s never been about public health. It’s always been about punishment and irrational fears — using punishment to police irrational fears of HIV.

When AIDS hit in the 1980s, the people that were most likely to be affected were people who Americans thought were already criminals — drug users, prostitutes, homosexuals. Highly denigrated groups of people whose behaviors were thoroughly criminalized under existing law already. It wasn’t a stretch to move from blaming these groups from spreading the disease to calling for them to be punished using the criminal law.

One of the things you mention in the book is that HIV transmission became a felony because sodomy was already a felony and they didn’t want to allow people to get away with sodomy to talk about an HIV transmission charge.

There was all this fear, particularly in Nevada, but in other places as well, that if we repealed the sodomy laws in place at the time, there would be this massive outbreak of HIV because if you made gay sex legal, it would be more permissive and people would go out and infect each other.

There was this great anxiety that this would happen. So one of the deals that got struck in many states was, OK if we decriminalize sodomy, at the same time we have to find a way to criminalize people living with HIV because we’re scared without a law criminalizing their behavior, the epidemic is going to run rampant.

One of the things I noticed in your chapter was that these HIV criminalization laws, you mention them being poorly written. They really remind me of the religious freedom acts now, where state legislatures kind of copy one another and lawmakers look at one another’s paper. It really just makes these easy McBills that are copied from state to state.

We have this idea that all state lawmakers get together and craft this individual, well thought out piece of legislation. Really, the way it works is that we have these lobbying groups like the American Legislative Exchange Council that create model statutes and then shop them out to legislatures across the United States. So we have a copy and paste situation for most states and that’s part of the reason we have so many messed up laws with HIV because most states didn’t take the time to think about the issues, they just copied what neighboring states were doing and said, “Well that’s good enough!”

I’m really interested in this parallel that you draw between HIV criminalization laws and early 20th century eugenicists and the ways these laws are about controlling a population. Can you elaborate on that?

There’s a long history of using the criminal law, but also the civil law and public health to control to populations that we think are dangerous, and often times that determination is based on prejudice. We have quarantine laws being more strictly enforced against Chinese populations in San Francisco. We have sex workers being rounded up in World Wars I and II because they were seen as vectors of syphilis and other diseases.

All these efforts frail from a public health perspective because they’re not aimed at controlling disease, they’re aimed at controlling stigmatized populations and controlling them because they’re members of that social group.

A lot of people don’t know there was a movement in the United States for a time to quarantine people living with HIV. You show in this chapter that one of the architects of the early HIV criminalization laws was also a fan of quarantining people with HIV.

These things went lock and step. You had people like William F. Buckley arguing that people diagnosed with HIV should be tattooed immediately upon diagnosis. You had public health experts publishing articles in the American Journal of Public Health arguing for what they called an “HIV parole system” which was effectively quarantine with the possibility of jail time if you didn’t shape up and act in a way they deemed appropriate.

There was a really widespread effort to try to regulate people living with HIV and it was really AIDS activists that we have to thank for the fact that many of those laws never came to fruition and that we don’t have quarantine for people with HIV.

Most of these laws, as we talked about earlier, end up punishing heterosexual people, but we know that one of the most high profile cases of HIV criminalization is Michael Johnson and HIV still disproportionately affects queer people. So these laws can end up criminalizing queer sexuality still.

Absolutely. We can’t just look at who is being punished under the law, we also have to think about those other effects of how the law creates or reinforces the symbolic stigma against people living with HIV.

I know plenty of people living with HIV who live in fear that their partners will turn on them or a one-night stand can land them in jail even though they did everything they could to protect that person and, in many cases, even if they disclose. There’s still this concern that their partner, whether a one night stand or a partner, can at one point wish revenge on them. That fear is really a dangerous thing.

It’s not productive, certainly from a public health perspective. It’s emotionally draining and interesting. Really, it’s not the way to live. I think these laws are more likely to do the opposite of what they’re supposed to do. These laws are poorly written, badly construed, bad for public health, and, most importantly, bad for social justice.

What would you say to another gay man who felt like these laws actually did protect them from people living with HIV?

I think many gay men have an idea of who is being prosecuted under these laws. They imagine it to be a kind of bogeyman intentionally trying to spread the disease to their partners. They have this scary image in their mind of who is being targeted.

When I went out to research these laws, I did not know who the average person being convicted under these laws was. What I found is that the vast majority of defendants are not this scary bogeyman. They’re someone who slipped up once and they owned up to the mistake and expressed regret about it or they’re someone who was in a relationship and was struggling with how to disclose in the beginning of that relationship. There are a lot of scenarios that are far more likely to play out instead of this bogeyman scenario that most people have in their heads.

I would ask people to take a moment and not just think about the worst case scenario but think about who is being punished under these laws. They’re people like a defendant in Tennessee who attempted suicide, woke up in a hospital distressed and bit a hospital attendant and was prosecuted under Tennessee law. If you really get down to brass tacks, those are not the people they think should be punished.

And yet that’s exactly who those laws are being used to punish. There’s a disconnect between how we think the law works and how the law actually does.

People still believe that HIV is an illness of personal responsibility. When HIV-negative people imagine these laws, they imagine an HIV-positive person who in the first place must have done something wrong to get it, and then they imagine that this person might do something wrong again because they’re already morally flawed. They don’t understand that HIV is a disease of poverty, racism, homophobia, and stigma and that they themselves can one day be on the other side of the law very easily. And in America, if you do something bad, you deserve to be behind bars!

These laws are based on the idea that telling someone you’re HIV positive will surely cause them to have a different kind of sex with you or no sex at all. And really at the end of the day we have so many prevention technologies now — PrEP, treatment as prevention — that can stop transmission in its tracks when you have sex with someone living with HIV.

The evidence really suggests that the best way to get HIV is to avoid having sex with HIV-positive people and only have sex with people who think they’re HIV negative. If you think you’re keeping yourself safe by relying on people to disclose your status to you, you have another thing coming. The people most likely to transmit are people who don’t know they’re positive because their viral loads are high because they’re not on treatment.

It’s a false security blanket for many HIV-negative gay men and that’s what I guess at the end of the day, for our day to day lives, is the most important point. Have sex with someone who’s positive. That’s your best prevention strategy given the technologies that are available today!

Published in September 28, on Into

Australia: Amendment to New South Wales Public Health Act, with its punitive focus on STIs transmission, risks undermining the Act intent

Is one person to blame if another gets a sexually transmissible infection (STI)? In most Australian states, if you have certain STIs, you have a legal responsibility to notify your potential sexual partners.

The NSW government last week passed an amendment to the state’s Public Health Act that increased the associated penalties by doubling the maximum fines and adding potential jail time.

Section 79 (1) of the Act now reads:

A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.

In addition to increasing potential penalties, the amendment removed an earlier provision mandating disclosure of STI status, replacing it instead with the need for “reasonable precautions”.

This is a positive change for the law that reflects the best available research on STIs and transmission. Yet its coupling with increased penalties has sent a mixed message about sexual health in the state.

Further, the idea that punishing STI exposure or transmission will decrease rates of infection is not supported by global research on HIV, and there is no reason to believe this would be any different for other STIs.

Laws across Australia

Health law is pretty complex and mainly left up to each state and territory. Generally speaking, across Australia you risk some kind of punishment for knowingly infecting another person with what are often referred to as “notifiable diseases”. This list covers a range of infections but STIs include chlamydia, gonorrhoea, syphilis, HIV, shigella, donovanosis, and hepatitis a, b and c.

In some states, notably New South Wales, Tasmania and Queensland, it’s an offence just to knowingly expose someone to an infection, even if they don’t actually become infected. While in other states, like Victoria and South Australia, health acts do not specify penalties for exposure or transmission, referring instead to the respective crime acts. For the most part, curable STIs do not rank as serious enough for criminal prosecution.

What is unique about NSW is that it uses the Public Health Act to single out STIs and describe specific punishments above and beyond other infections.

Although laws in NSW seem unusually fixated on STIs, the move away from mandated disclosure in favour of “reasonable precautions” is a positive step. While disclosure may seem sensible on the surface, it’s not the most effective at preventing transmission. This is because disclosure requires that someone be aware of an infection and many people with an STI don’t realise they are infected. For example, it’s estimated nearly three quarters of chlamydia infections in young people in Australia go undiagnosed every year. Relying on disclosure can, therefore, give people a false sense of security.

There are other more effective strategies than disclosure for protecting someone from infection. With HIV, for example, successful treatment means the risks of transmitting the virus to another person are virtually nonexistent. Under the amended NSW law, treatment could quite rightly be considered a reasonable precaution to avoid transmitting HIV.

But the state’s Public Health Act is relevant to all STIs, not just HIV. For other infections, it’s less clear what precautions might be seen as reasonable. Condoms can offer protection from some infections, but not all, and they are rarely used for oral sex. Given more and more chlamydia and gonorrhoea cases are identified in the throat, this is potentially problematic.

Punishment doesn’t help

Every year, there are over 100,000 STI diagnoses across Australia, the vast majority of which can be cured using antibiotics. Ultimately, public health initiatives aim to reduce new cases and lower the overall amount of infection.

It’s been suggested by public health experts that criminalising transmission can undermine public health efforts by reinforcing stigma and causing people to delay accessing testing, treatment and care.

And in a review of legal conditions around the world, researchers found that there was no link between laws criminalising HIV transmission and lower infection rates. The review also found such laws disproportionately impacted those who may experience marginalisation, such as young people and women.

In reality, situations where an individual recklessly or wilfully places another at risk of an STI are incredibly rare and health officials have many options besides punishment.

As part of their core work, doctors and clinics counsel on and work with people to prevent onward transmission, and in some cases public health orders can be used to compel people to, among other actions, attend counselling and refrain from activities that might spread an infection. In the most extreme situations, criminal charges can be brought on the basis of grievous bodily harm.

Overall, a special and punitive focus to STIs risks further entrenching stigma and undermining the Act’s intent, which is to manage and reduce infection. If there is any hope of reducing STIs in Australia, laws must aim to foster an environment where people feel comfortable, able and willing to get tested and engaged with their sexual health.

While it seems unlikely a rush to prosecute those who expose others to STIs will spring up from this amendment, the law as it is currently written leaves open that rather serious possibility. In NSW and across Australia, health law consistently places the burden of prevention on one partner. In an ideal world, all parties to a sexual encounter take “reasonable precautions” to protect themselves and each other from infection.

FCAA Philanthopy Summit: Growing the Global Movement to End Criminalization (Funders Concerned About AIDS, 2017)

This session aimed at philanthropic funders discussed the growing global movement to end HIV criminalization – overly broad and/or vague criminal laws, that unjustly regulate, control, and/or punish people living with HIV solely based on their HIV status. The panel’s participants exemplify the uniqueness of the Robert Carr Fund model of incentivizing collaborative and joint efforts of networks across movements – who join into consortia of, for example, people living with HIV and human rights defenders/lawyers – and the model of linking activities at global, regional and national levels, which catalyzes a more aligned and impactful effect in resisting and fighting HIV criminalization.

Moderator: Sergey Votyagov, Robert Carr Fund for Civil Society Networks (RCF)
Introduction: Luisa Cabal, Joint United Nations Programme on HIV/AIDS (UNAIDS)
Panelists:
• Edwin Bernard, HIV Justice Network (HJN)
• Laurel Sprague, Global Network of People Living with HIV (GNP+)
• Lynette Mabote, AIDS and Rights Alliance for Southern Africa (ARASA)

Brazil: Activists celebrate as ‘deliberate HIV transmission’ law amendment is withdrawn

Yesterday, news broke that populist Congressman, Pompeo de Mattos, has withdrawn an amendment originally proposed in 2015 to make ‘deliberate’ HIV transmission a ‘heinous crime’.

The amendment, Bill No. 198, 2015, would have added to the list of heinous crimes – which currently includes murder, extortion, rape, child exploitation and spreading an epidemic that results in death – those who “transmit and infect consciously and deliberately others with the AIDS virus. (sic)”.

According to Brazil’s AIDS News Agency

In Brazil, intentional transmission, that is, with intent, is already considered a crime. Articles 130 and 131 of the Penal Code already provide for imprisonment for those who infect others. Anyone who exposes someone to a venereal disease through sexual intercourse can be jailed for three months to a year or receive a fine. If the person intentionally wants to transmit the disease, the penalty is imprisonment, from one to four years, and fine.

“The initiative to criminalize HIV-positive people does not contribute to the fight against prejudice and discrimination, and it also throws the responsibility of prevention on the infected person,” says a statement released on Thursday by Foaesp Of the State of São Paulo).

In this same document, the Forum thanked Mr Pompeo for his request to withdraw from the PL. “We are now waiting for the House Board to abide by the request and file the bill, and we will also be careful that no other parliamentarian has a similar initiative.”

Activists from all over Brazil have celebrated the Bill’s withdrawal. Any new proposal cannot be considered by the current parliament and now must wait until after elections, scheduled for October 2018.

Since 2015, PLHIV networks, civil society organisations, the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health, and a number UN agencies – includng UNAIDS and UNFPA – had all pressured Congress to withdraw the bill.

Update (September 4th). A press release by the Department of STDs, AIDS and Viral Hepatitis of the Ministry of Health notes:

The director of the Department of STDs, AIDS and Viral Hepatitis (DIAHV), Adele Benzaken, called the federal MPs Érica Kokay (PT-DF), member of the Family Social Security Commission (CCSF) and Coordinator of the Joint Parliamentary Front to Combat STDs, HIV , and AIDS – and Laura Carneiro (PMDB-RJ) and Deputy Pompeo de Mattos to thank them for their support against the procedure of PL 198/15. ““The effort of these parliamentarians was essential to educate their colleagues in the House to reassess that Brazil is a reference in the treatment of HIV / AIDS and that this will not help the Brazilian response at all.“ The director of DIAHV also highlighted the mobilisation made by civil society and the support of the Brazilian Office of the Joint United Nations Program on HIV / AIDS (UNAIDS) that she said were key to the outcome achieved with the filing request.

On July 3rd, the United Nations Expanded Thematic Group on HIV / AIDS (WG / UNAIDS) chaired by UNFPA, met to articulate opposition to the Bill.

For the UNFPA representative in Brazil, Jaime Nadal, the bill goes against the ideals and proposals of the United Nations regarding the HIV / AIDS epidemic. Criminalizing HIV transmission, in addition to reinforcing the stigmatization of people living with the virus, may discourage people from undergoing testing and treatment, since they would be under threat of becoming criminals, he said.The bill ignores the scientific advances in HIV / AIDS, which prove that antiretroviral treatments reduce the chances of transmitting the virus in sexual intercourse by up to 96%. “Many countries around the world are reforming their laws criminalising HIV transmission,” said Nadal, adding that the bill goes against the global trend.

UNAIDS Director in Brazil, Georgiana Braga-Orillard, reinforced the speech of the UNFPA representative. According to her, the bill further vulnerabilises populations with a positive serological status, since “it considers the more than 800 thousand people living with HIV in Brazil as potential criminals.”

In a technical note, UNAIDS outlined six counter-arguments to the bill: it penalizes the most vulnerable; it promotes fear and discrimination; it favours the selective application of the law; it disregards the scientific evidence on HIV; it compromises privacy and confidentiality, and it will make Brazil lose its leading role in the response to HIV / AIDS.

A public meeting with the Congressman, scheduled for July 4th, was cancelled at the last minute. However, the letter of withdrawal, although only publicly released yesterday, was dated May 11th.

I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which "makes a heinous crime the deliberate transmission of the AIDS virus." — Translation: I request you, pursuant to art. 104 of the Internal Rules of the Chamber of Deputies, the withdrawal of the Bill of Law No. 198 of 2015, which “makes a heinous crime the deliberate transmission of the AIDS virus.”

Nevertheless, prosecutions under general laws continue.

In July, a newspaper reported that a 43 year-old heterosexual man was charged with serious bodily injury in a Rio de Janeiro court for ‘attempting to infect two women with HIV’ by having sex without a condom.

In an interview with the Rio newspaper Extra , the man admitted that he was HIV-positive and [allegedly] transmitted HIV to the women, but denied that he had had sex without a condom with the intention of infecting his partners.

The case continues.